19 Ind. App. 199 | Ind. Ct. App. | 1898
— Appellee was employed by the city of Hammond to construct and build a certain brick sewer in said city. The contract of employment is long and embraces every detail of the work to be done. That paragraph or part of the contract which is discussed by the parties to this appeal is as follows: “And it is further provided hereby, and • understood, that said second party shall execute his bond payable to said city in the sum of five thousand dollars, with sureties satisfactory to and to be approved by said common council which bond shall be conditioned for the faithful performance and complete carrying' out
A demurrer was sustained to the second paragraph above set out. There was a trial and finding in favor
With due regard for the views of appellants’ learned counsel, we are of the opinion that there is no merit in this appeal.
If, indeed, it was necessary that appellee should prove that he had duly executed a bond to the acceptance of the common council of the city of Hammond, and that all this should be done prior to a certain hour of a certain day in order to maintain his action against appellants, the objection could be of no force because it is in evidence that the bond of appellee was filed on the 14th of October with the' clerk of the city of Hammond, and was by the common council of said city duly approved on the 15th of October, all within the time stipulated in the contract. The fact that the bond itself was dated on the 17th is not controlling, as its execution, delivery, and acceptance completes the transaction. If, as appellant argues, it was necessary for appellee to prove these facts with relation to the execution of the bond, then the general denial filed by appellant put them in issue and there was no evidence admissible under the second paragraph of answer which was not admissible under ■the first paragraph of answer. The action of the court in sustaining the demurrer to the second paragraph of answer was not available error, for this reason if for no other. Then again, appellants were not parties to the contract; the only parties to the contract were appellee and the city of Hammond, and if it had been a fact that appellee failed to comply with his contract in regard to the bond, who but the city of Hammond could declare the contract forfeited? Under this statute, section 4298, supra, any interested person could enjoin the work being done, on account
The cases cited in appellants’ brief are not in point, The principles of law contended for by counsel for appellants are sound, but are not applicable to this cause. Cases going to show that the city of Hammond could have declared the contract forfeited, and that appellee had no rights thereunder in case appellee failed to comply with the conditions as to the time of the filing of the bond, do not tend to show that a stranger to the contract would be entitled to the same rights thereunder. So far as the record shows, appellants’ property was legally and rightfully assessed; there is no complaint that the assessment is too large, the improvement was made and accepted by the party whose duty it was to accept the same and to the^acceptance of the party to whom the bond was given. We are certain that appellants cannot now complain. It is no defense to an assessment that the contract was not performed strictly according to its terms. The city council is the judge that decides whether or not the contract has been, in all requirements, fulfilled, and if the work is by the city council accepted, the property owner can, in the absence of fraud, interpose no objection in an action to enforce the lien of the assessment. We are fully sustained in this position by the late case of Bozarth v. McGillicuddy, ante, 26, and the case of Darnell v. Keller, 18 Ind. App. 103. We find no error in the record. Judgment affirmed.